Civil Rights Commission recommends new state law stripping public employees of immunity against lawsuits

by Kathleen Sloan | November 19, 2020
7 min read

The New Mexico Civil Rights Commission is recommending a new law be passed that makes it easier to sue public employees for civil rights violations. The Sierra County Commission passed a resolution Nov. 17 opposing this reform, primarily because they fear it could drain public coffers.

Legislation creating the Civil Rights Commission, as well as requiring law enforcement officers to wear body cameras, was spearheaded during the special session in June by Governor Michelle Lujan Grisham, “in light of an ongoing national reckoning on unnecessary excessive force by police officers,” states the governor’s website.

Nationwide, police brutality protests were ignited by George Floyd’s death on May 25. He suffocated as a Minneapolis police officer knelt on his neck, while other police officers stood by, a scene captured by witness video.

The nine-member Civil Rights Commission was charged with considering a law to create a “civil right of action for violations of state constitutional rights,” the governor’s website states. It met eight times between August and Nov. 13, the date of its last meeting. In order to be available to the legislature in the upcoming session, the commission won’t be disbanded until March 2021.  

Currently New Mexicans have some civil rights remedies under the state Tort Claims Act, which addresses general wrongdoing by public employees. The Tort Claims Act gives “sovereign immunity” to most public employees, with some exceptions carved out for law enforcement officers.

Citizens anywhere in the United States may file a federal lawsuit for civil rights claims as proscribed in U.S. Code Title 42, Section 1983. However, the law forces plaintiffs to first pierce law enforcement officers’ “qualified immunity” by matching past federal case law to their specific circumstance. Borne out by recent studies by the Cato Institute, this is a very high bar.

The Civil Rights Commission voted 6 to 3 on Oct. 23 to recommend the legislature create a new civil rights law. The draft law and accompanying 29-page executive summary were written by commission Vice Chairperson Mark Baker, a partner with the Albuquerque law firm Peifer, Hanson, Mullins & Baker.

Before joining the firm, Baker served as an Assistant United States Attorney for the District of New Mexico. According to the firm’s website, his primary responsibility was prosecuting all criminal civil rights cases in New Mexico.

Baker said law enforcement officers are not the sole focus of the new civil rights law, which applies to all public employees. However, Sandoval County Attorney Robin Hammer testified before the commission that, of the 1,201 federal civil rights cases filed in the state between 2012 and 2016, “95 percent” named law enforcement officers.

“The United States Constitution protects important rights,” Baker wrote in the executive summary, “and Congress long ago enacted a statute that provides a remedy when those rights are violated. The New Mexico Constitution also recognizes fundamental rights that protect the people from government overreach or abuse. But today—over 100 years after statehood—New Mexico still does not have a statute that allows the victims of state constitutional violations to recover in court. A majority of the Commission recommends that the Legislature fix that problem by enacting a New Mexico Civil Rights Act (“the Act”) that:

“1. Provides a cause of action allowing people to enforce the fundamental rights the New Mexico Constitution guarantees and recover for the deprivation of those rights;

“2. Specifies that qualified immunity will not be a defense to claims brought under the Act;

“3. Allows for compensatory but not punitive damages;

“4. Allows those who prevail in a case brought under the Act to recover reasonable attorney fees; and

“5. Specifies that, consistent with New Mexico’s current law under which the state and local governments defend and indemnify their employees, public employees and officials will not bear the personal risk or responsibility for paying a judgment or settlement under the Act.”

The Sierra County Commission tasked county staff with drafting an opposing resolution, according to County Manager Bruce Swingle. It was approved unanimously at the commission’s monthly meeting in November.

Counties throughout the state had been urged to protest the proposed legislation by the New Mexico Association of Counties, said Sheriff Glenn Hamilton in a Nov. 13 interview with the Sun. Hamilton sits on the New Mexico County Association’s board.

Among other services, the association pools counties’ funds to create a self-insurers fund. It provides liability insurance for 29 of the state’s 33 counties. It also handles Sierra County’s litigation as part of its risk management insurance policy, said Hamilton.

Association Attorney Grace Philips wrote a letter to the Civil Rights Commission on Oct. 20 stating: “Creation of a sweeping new cause of action with uncapped compensatory damages, punitive damages, and attorney fees has been billed as a method for creating accountability and forging change. The cost will fall to the taxpayer in the form of increased taxes and reduced services.”

“Preliminary analysis,” Philips stated, “indicates that the annual cost to counties to pay for judgments, settlements, and attorney fees would increase from 50 percent to 75 percent annually, even if no new claims are filed,”

In addition to the cost factor, the county resolution echoes Philips in arguing carve-outs in the state Tort Claims Act allow law enforcement officers to be sued, making a civil rights cause of action unnecessary.   

The exemptions are in section 41-4-12 of the Tort Claims Act, titled “Liability; law enforcement officers,” which states: “The immunity granted pursuant to Subsection A of Section 41-4-4 NMSA 1978 does not apply to liability for personal injury, bodily injury, wrongful death or property damage resulting from assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, defamation of character, violation of property rights, the independent tort of negligent spoliation of evidence or the independent tort of intentional spoliation of evidence, failure to comply with duties established pursuant to statute or law or any other deprivation of any rights, privileges or immunities secured by the constitution and laws of the United States or New Mexico when caused by law enforcement officers while acting within the scope of their duties.”

During the Civil Rights Commission’s Oct. 23 meeting, Vice Chair Baker noted that, under the Torts Act exemptions, plaintiffs are limited to suits concerning physical harm or property damage done by law enforcement officers while violating their constitutional rights.

The exemptions do not create comprehensive civil rights protections, Baker said, “and are not good enough.”

Claims that county insurance will go sky high or become unobtainable for law enforcement officers altogether were not proven by witnesses brought before the Civil Rights Commission, the executive summary states. The proposed legislation did take cost into consideration, however, by excluding punitive damages from the new law, the summary states. In any event, cost concerns are not reason enough to block civil rights legislation, Baker said.

Hamilton, in interviews on Nov. 13 and Nov. 16, said it was “predictable” the Civil Rights Commission would recommend a bill similar to one circulated but never introduced by New Mexico House Speaker Brian Egolf during the June special session.

Hamilton decried the lack of substantive stakeholder input at the commission hearings, which were conducted virtually, enabling the commission to control the agenda and the witness list, while limiting public comment. The video of the Oct. 23 meeting, mounted on the commission’s website, appeared to have been edited, with dead air time interrupting key testimony, and ending abruptly before the final vote was taken on whether to approve the legislation.

Governor Grisham chose three of the nine Civil Rights Commission members, and the other six were chosen by the Legislative Council, chaired by Egolf, who withdrew his civil rights legislation after the governor requested that a commission be formed to study the issue, Hamilton pointed out.

“All of the governor’s committees have been like that,” Hamilton said. “It was the same thing with the ‘Red Flag Law’ and cannabis committees,” he said, referring to the bodies that recommended a legal process for removing guns from persons deemed a threat and the legalization of recreational marijuana. They, too, controlled the agenda, timetable and “subject matter of testimony they would listen to,” he claimed.

The Sierra County Commissioners acted with equal dispatch in passing the resolution protesting the proposed civil rights legislation. The commission held no special hearing to plumb the public will or hear expert testimony before taking a position, and the short notice that the resolution would be considered at the Nov. 17 meeting limited the public’s ability to marshal comment.

After complaining about state government’s imposing its will on local government, County Commissioner Travis Day excused the commission’s unilateral decision to oppose the civil rights legislation with the claim: “We know what is right for our people.”

Kathleen Sloan is the Sun’s founder and chief reporter. She can be reached at or 575-297-4146.
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Understanding New Mexico's proposed new social studies standards for K-12 students

“The primary purpose of social studies is to help young people develop the ability to make informed and reasoned decisions for the public good as citizens of a culturally diverse, democratic society in an interdependent world.”
—National Council for the Social Studies 

Reader Michael L. Hayes of Las Cruces commented: What impresses me is that both the proposed standards and some of the criticisms of them are equally grotesque. I make this bold statement on the basis of my experience as a peripatetic high school and college English teacher for 45 years in many states with many students differing in race, religion, gender and socioeconomic background, and as a civic activist (PTA) in public education (My career, however, was as an independent consultant mainly in defense, energy and the environment.)

The proposed social studies standards are conceptually and instructionally flawed. For starters, a “performance standard” is not a standard at all; it is a task. Asking someone to explain something is not unlike asking someone to water the lawn. Nothing measures the performance, but without a measure, there is no standard. The teacher’s subjective judgment will be all that matters, and almost anything will count as satisfying a “performance standard,” even just trying. Students will be left to wonder “what is on the teacher’s mind?” or “have I sucked up enough.”

Four other quick criticisms of the performance standards. One, they are nearly unintelligible because they are written in jargon. PED’s use of jargon in a document intended for the public is worrisome. Bureaucrats often use jargon to confuse or conceal something uninformed, wrong or unworthy. As a result, most parents, some school board members and more than a few teachers do not understand them.

Two, the performance standards are so vague that they fail to define the education which teachers are supposed to teach, students are supposed to learn, and parents are supposed to understand. PED does not define words like “explain” or “describe” so that teachers can apply “standards” consistently and fairly. The standards do not indicate what teachers are supposed to know in order to teach or specify what students are supposed to learn. Supervisors cannot know whether teachers are teaching social studies well or poorly. The standards are so vague that the public, especially parents or guardians, cannot know the content of public education.

Three, many performance standards are simply unrealistic, especially at grade level. Under “Ethnic, Cultural and Identity Performance Standards”; then under “Diversity and Identity”; then under “Kindergarten,” one such standard is: “Identify how their family does things both the same as and different from how other people do things.” Do six-year-olds know how other people do things? Do they know whether these things are relevant to diversity and identity? Or another standard: “Describe their family history, culture, and past to current contributions of people in their main identity groups.” (A proficient writer would have hyphenated the compound adjective to avoid confusing the reader.) Do six-year-olds know so much about these things in relation to their “identity group”? Since teachers obviously do not teach them about these other people and have not taught them about these groups, why are these and similar items in the curriculum; or do teachers assign them to go home and collect this information?

Point four follows from “three”; some information relevant to some performance measures requires a disclosure of personal or family matters. The younger the students, the easier it is for teachers to invade their privacy and not only their privacy, but also the privacy of their parents or guardians, or neighbors, who may never be aware of these disclosures or not become aware of them until afterward. PED has no right to design a curriculum which requires teachers to ask students for information about themselves, parents or guardians, or neighbors, or puts teachers on the spot if the disclosures reveal criminal conduct. (Bill says Jeff’s father plays games in bed with his daughter. Lila says Angelo’s mother gives herself shots in the arm.) Since teacher-student communications have no legal protection to ensure privacy, those disclosures may become public accidentally or deliberately. The effect of these proposal standards is to turn New Mexico schools and teachers into investigative agents of the state and students into little informants or spies.

This PED proposal for social studies standards is a travesty of education despite its appeals to purportedly enlightened principles. It constitutes a clear and present danger to individual liberty and civil liberties. It should be repudiated; its development, investigated; its PED perpetrators, dismissed. No state curriculum should encourage or require the disclosure of private personal information.

I am equally outraged by the comments of some of T or C’s school board members: Christine LaFont and Julianne Stroup, two white Christian women, who belong to one of the larger minorities in America and assume white and Christian privileges. In different terms but for essentially the same reason, both oppose an education which includes lessons about historical events and trends, and social movements and developments, of other minorities. They object to the proposal for the new social studies standards because of its emphasis on individual and group identities not white or Christian. I am not going to reply with specific objections; they are too numerous and too pointed.

Ms. LaFont urges: “It’s better to address what’s similar with all Americans. It’s not good to differentiate.” Ms. Stroup adds: “Our country is not a racist country. We have to teach to respect each other. We have civil rights laws that protect everyone from discrimination. We need to teach civics, love and respect. We need to teach how to be color blind.”

Their desires for unity and homogeneity, and for mutual respect, are a contradiction and an impossibility. Aside from a shared citizenship, which implies acceptance of the Constitution, the rule of law and equality under the law, little else defines Americans. We are additionally defined by our race, religion, national origin, etc. So mutual respect requires individuals to respect others different from themselves. Disrespect desires blacks, Jews or Palestinians to assimilate or to suppress or conceal racial, religious or national origin aspects of their identity. The only people who want erasure of nonwhite, non-Christian, non-American origin aspects of identity are bigots. Ms. LaFont and Ms. Stroud want standards which, by stressing similarities and eliding differences, desire the erasure of such aspects. What they want will result in a social studies curriculum that enables white, Christian, native-born children to grow up to be bigots and all others to be their victims. This would be the academic equivalent of ethnic cleansing.


This postmortem of a case involving a 75-year-old women who went missing from her home in Hillsboro last September sheds light on the bounds of law enforcement’s capacity to respond, especially in large rural jurisdictions such as Sierra County, and underscores the critical role the public, as well as concerned family and friends, can play in assisting a missing person’s search.

Reader Jane Debrott of Hillsboro commented: Thank you for your article on the tragic loss of Betsey. I am a resident of Hillsboro, a friend of Rick and Betsey, and a member of H.E.L.P. The thing that most distresses me now, is the emphasis on Rick’s mis-naming of the color of their car. I fear that this fact will cause Rick to feel that if he had only gotten the facts right, Betsey may have been rescued before it was too late. The incident was a series of unavoidable events, out of everyone’s control, and we will never know what place the correct color of her car may have had in the outcome. It breaks my heart to think that Rick has had one more thing added to his “what ifs” concerning this incident.

Diana Tittle responded: Dear Jane, the Sun undertook this investigation at the request of a Hillsboro resident concerned about the town’s inability to mount a prompt, coordinated response to the disappearance of a neighbor. From the beginning, I shared your concern about how our findings might affect Betsy’s family and friends. After I completed my research and began writing, I weighed each detail I eventually chose to include against my desire to cause no pain and the public’s right to know about the strengths and limitations of law enforcement’s response and the public’s need to know about how to be of meaningful assistance.

There was information I withheld about the state police investigation and the recovery. But I decided to include the issue of the car’s color because the individuals who spotted Betsy’s car emphasized how its color had been key to their identification of it as the vehicle described in Betsy’s Silver Alert. Because the misinformation was corrected within a couple of hours, I also included in this story the following editorial comment meant to put the error in perspective: “The fact that law enforcement throughout the state was on the lookout in the crucial early hours after Betsy’s disappearance for an elderly woman driving a “light blue” instead of a “silver” Accord would, in retrospect, likely not have changed the outcome of the search” [emphasis added].

I would also point to the story’s overarching conclusion about the inadvisability of assigning blame for what happened: “In this case, a perfect storm of unfortunate circumstances, many of them beyond human control, hindered the search that it would fall to Hamilton’s department to lead.”

It is my hope that any pain caused by my reporting will eventually be outweighed by its contribution to a better community understanding of what it will take in the future to mount a successful missing person’s search in rural Sierra County.


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1 thought on “Civil Rights Commission recommends new state law stripping public employees of immunity against lawsuits”

  1. Our county commission seems to be a knee-jerk automaton of the national Republican Party. Anything that preserves the natural world, grants equal rights to everyone, responds to the most up-to-date scientific information regarding the health and welfare of the population or keeps dangerous people from having dangerous weapons is instantly and forthwith therefore something to oppose. It’s just so obvious that we don’t even need any intelligent discussion about it. Let’s just get on with the march to inequality, suppression of rights, destruction of anything we can’t control or somehow make money off of, and the annihilation of the human race by fire, flood, bullets and pestilence. Seriously folks, trust us, why take anything seriously. Eat, drink and be merry for tomorrow maybe the Democrats will rule.

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